Madras High Court
New India Assurance Co. Ltd vs N.Ravi on 1 July, 2022
C.M.A.No.130 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.07.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
and
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
C.M.A. No.130 of 2022
and C.M.P.No.944 of 2022
New India Assurance Co. Ltd.,
Maikro Branch Office,
Sankari, Salem District. .. Appellant
Vs.
1.N.Ravi
2.United India Insurance Co. Ltd.,
5, Priyakadai Veethi,
Dharapuram, Tiruppur District.
3.N.S.N.Nataraj
4.Chinnammal .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 02.02.2021, made
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in M.C.O.P. No.1300 of 2015, on the file of the Additional District and
Sessions Court, (Motor Accident Claims Tribunal), Tiruppur, Dharapuram.
For Appellant : Mrs.S.R.Sumathy
For RR3 & 4 : Mr.S.Kaithamalai Kumaran
JUDGMENT
[Judgment of the Court was delivered by V.M.VELUMANI,J.]
This Civil Miscellaneous Appeal has been filed by the appellant
against the judgment and decree dated 02.02.2021, made in M.C.O.P.
No.1300 of 2015, on the file of the Additional District and Sessions Court,
(Motor Accident Claims Tribunal), Tiruppur, Dharapuram.
2.The appellant is the 2nd respondent in M.C.O.P. No.1300 of 2015, on
the file of the Additional District and Sessions Court, (Motor Accident Claims
Tribunal), Tiruppur, Dharapuram. The respondents 3 & 4/claimants filed the
said claim petition, claiming a sum of Rs.3,00,00,000/- as compensation for
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C.M.A.No.130 of 2022
the death of one Samiyappa Gounder, who died in the accident that took place
on 24.08.2015.
3.According to the respondents 3 & 4, on the date of accident, at about
6.15 p.m, when the deceased Samiyappa Gounder was proceeding in his TVS
XL Super Moped bearing Registration No.TN-42-Y-2517 towards South, on
the left side of Chennimalai to Kangyam main road and tried to go to the right
side by showing signal in hand and indicating the light, the driver of the
Lorry bearing Registration No.TN-52-H-1858, owned by the 1st respondent,
drove the same in a rash and negligent manner and dashed on the Moped and
caused the accident. In the accident, the said Samiyappa Gounder sustained
severe injuries and died on the same day. The accident occurred only due to
rash and negligent driving by driver of the Lorry and hence, the respondents 3
& 4 filed claim petition against the 1st respondent and appellant-Insurance
Company as owner and insurer of the Lorry and 2nd respondent-Insurance
Company as insurer of the Moped.
4.The 1st respondent, owner of the Lorry, remained exparte before the
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C.M.A.No.130 of 2022
Tribunal.
5.The appellant, insurer of the Lorry, filed counter statement and
denied all the averments made by the respondents 3 & 4 in the claim petition.
According to the appellant-Insurance Company, the place of accident and
manner of alleged accident itself clearly shows that the deceased had
contributed to the accident by suddenly crossing the North – South road from
East to West in negligent manner to reach his house, without showing any
signal or minding the arrival of Lorry from opposite direction. The accident
occurred on the Western portion of the road and hence, there is no negligence
on the part of the driver of the Lorry. The deceased rode the Moped without
valid driving license and caused the accident. Hence, the appellant-Insurance
Company is not liable to pay compensation to the respondents 3 and 4. Since
the 3rd respondent is being MLA of Kangeyam Assembly, the case is
registered by the Police under his influence against the driver of the Lorry by
concealing the rash and negligence of the deceased. The claim petition is bad
for non-joinder of driver of the Lorry. The deceased was aged about 82 years
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C.M.A.No.130 of 2022
at the time of accident. He was being a name lender to the business of the 3 rd
respondent and not a partner or administrator of Oil Mill, as pleaded by the
respondents 3 and 4. The real fact is that the Oil Mill is a partnership concern
started by the deceased, the 3rd respondent and his son N.Dhanapal on
01.04.2012. As per the deed, the deceased and 3rd respondent are each entitled
to 20% share and the remaining 60% share would go to the son of the 3rd
respondent. So the partnership deed itself shows that the Mill is looked after
by the son of the 3rd respondent and the deceased was not having any active
participation in the business. Further, on the next day of demise of the said
Samiyappa Gounder, the wife of the son of the 3rd respondent viz.,
A.Vindyavasini was included as partner in the place of the deceased, to the
Mill. Therefore, there is no loss caused in the Oil Mill business due to the
death of the deceased. The respondents 3 and 4 have to prove the agricultural
income of the deceased. The 3rd respondent is a notable politician and
businessman, running whole sale 'Copra' business, Coconut Oil business in
the brand name of N.S.N. Oil, running a Petrol Bunk and a Marriage Hall in
the name of N.S.N. Thirumana Mahal. The 3rd respondent is having income of
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C.M.A.No.130 of 2022
more than one Crore per annum and not depending on the deceased. The 4th
respondent is running Oil Mill at Kangeyam in the name of P.K.B. Oil Mill
and was earning more than Rs.10,00,000/- per annum. The total
compensation claimed by the respondents 3 and 4 is highly speculative,
exaggerated and excessive, without any legal or factual basis and prayed for
dismissal of the claim petition.
6.The 2nd respondent, insurer of the Moped, filed counter statement and
denied all the averments made by the respondents 3 and 4 in the claim
petition. According to the 2nd respondent, the accident occurred only due to
the rash and negligent driving by driver of the Lorry owned by the 1st
respondent. FIR and Charge Sheet was also filed by the Police against the
driver of the Lorry. Hence, the appellant and 1st respondent alone are liable to
pay compensation to the respondents 3 and 4. The deceased Samiyappa
Gounder, who was the owner of the Moped, was not possessing valid driving
license to ply the Moped at the time of accident. As per the policy issued to
the Moped, the respondents 3 and 4 are not entitled to claim compensation
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C.M.A.No.130 of 2022
against the 2nd respondent. The respondents 3 and 4 have to prove the age,
avocation and income of the deceased to claim compensation and prayed for
dismissal of the claim petition.
7.Before the Tribunal, the 3rd respondent examined himself as P.W.1,
eye-witness to the accident was examined as P.W.2 and an official from
Income Tax department was examined as P.W.3 and 25 documents were
marked as Exs.P1 to P25. The appellant examined two witnesses as R.W.1
and R.W.2 and marked 1 document as Ex.R1. Court documents were marked
as Exs.C1 to C5.
8.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred only due to rash and negligent
driving by driver of the Lorry, owned by the 1st respondent and directed the
appellant as insurer of the said vehicle to pay a sum of Rs.55,47,354/- as
compensation to the respondents 3 & 4.
9.Against the said award of the Tribunal dated 02.02.2021, made in
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C.M.A.No.130 of 2022
M.C.O.P. No.1300 of 2015, the appellant - Insurance Company has come out
with the present appeal.
10.The learned counsel appearing for the appellant-Insurance Company
contended that the Tribunal erroneously fixed the negligence on the part of
the driver of the Lorry relying on the evidence of P.W.2. The Tribunal failed
to see that P.W.2 is a relative of deceased and respondents and he is an
interested witness. The deceased was aged 85 years and was driving Moped
without any driving license. At the time of accident, the deceased would not
have properly seen the oncoming Lorry and invited the accident. The
respondents 3 and 4 are having independent business and income. Even after
the death, the business of the deceased is being continued and there is no loss
to the respondents 3 and 4. The daughter-in-law of the 3rd respondent was
inducted as partner in the oil mill business on the very next day of the demise
of Samiyappa Gounder and therefore, there is no loss to the respondents 3
and 4. Having admitted that the respondents 3 and 4 are not dependents of the
deceased, the Tribunal erred in awarding compensation to the respondents 3
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C.M.A.No.130 of 2022
and 4, considering them as dependents. The Tribunal failed to consider the
impact of Income Tax while arriving at the income of the deceased. The total
compensation awarded by the Tribunal is excessive and prayed for reducing
the same.
11.Per contra, the learned counsel appearing for the respondents 3 and
4 contended that at the time of accident, the deceased Samiyappa Gounder
was aged 80 years, hale and healthy and was doing agriculture in 50 acres of
land and also was administering Prema Oil Mill as a share holder and was
earning a sum of Rs.2,50,000/- per month. The respondents 3 and 4 have
marked Exs.P13 to P15 – Income Tax returns to prove the avocation and
income of the deceased. The Tribunal considering the same, coupled with the
evidence of P.W.3 – Official from Income Tax Department, granted
compensation towards loss of dependency by taking the average income for
three years, instead of taking the returns filed in the year 2015 into account.
Had the deceased been alive, he would have managed the Oil Mill and earned
more through better management and would have given good future to the
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respondents 3 and 4, who are his children. The amounts awarded by the
Tribunal under other heads are not excessive and prayed for dismissal of the
appeal.
12.Heard the learned counsel appearing for the appellant-Insurance
Company as well as the respondents 3 & 4 and perused the entire materials
available on record.
13.From the materials on record, it is seen that it is the case of the
respondents 3 and 4 that on the date of accident, their father was riding the
Moped from North to South on the left side of Chennimalai to Kangeyam
main road, after showing signal, he turned to right hand side. At that time, the
driver of the Lorry owned by the 1st respondent drove the Lorry in a rash and
negligent manner at high speed from South to North and dashed on the
Moped driven by the said Samiyappa Gounder. To substantiate their case, the
respondents 3 and 4 examined P.W.2, eye-witness who gave the complaint
and based on which FIR – Ex.P1 was registered. Deposition of P.W.2
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C.M.A.No.130 of 2022
corroborated with the contents of FIR. On the other hand, it is the case of the
appellant-Insurance Company that the said Samiyappa Gounder suddenly
turned to the right hand side without any signal and thus, accident occurred.
To substantiate their stand, they examined driver of the Lorry as R.W.1.
P.W.2, even though is a relative of the deceased, he has witnessed the
accident and taken the injured to the Government Hospital, Kangeyam and
informed the relatives. After the injured was shifted to KMC Hospital, he
went to Police Station, Kangeyam and lodged complaint at 9.15 p.m, within 3
hours of the accident. In his cross-examination, he has stated that the
deceased turned to the right hand side after giving signal, crossed 75% of the
road, at which time, the driver of the Lorry, who was driving the Lorry in a
rash and negligent manner at high speed, dashed on the Moped driven by the
deceased and caused the accident. The respondents 3 and 4 marked Rough
Sketch as Ex.P4, which shows that the accident occurred on the Western edge
of the road. From the Rough Sketch, it is seen that the deceased almost
crossed the road and accident occurred on the Western edge of the road. Even
though R.W.1, driver of the Lorry, in his evidence has stated that the deceased
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did not give any signal before turning to right side, he admitted that accident
occurred on the Western edge of the road. The Tribunal, considering the fact
that the deceased crossed 75% of the road and place of occurrence i.e.
Chennimalai to Kangeyam main road is a settlement road, the driver of the
Lorry ought to have been careful in driving the Lorry and fixed negligence on
the driver of the Lorry, who is responsible for the accident and liability on the
appellant-Insurance Company. Considering all the above materials, we are of
the opinion that there is no error in the said finding of the Tribunal warranting
interference by this Court.
14.As far as the contention of the learned counsel appearing for the
appellant-Insurance Company that the respondents 3 and 4 are not dependents
on the deceased and they have independent source of income is concerned,
even if the respondents 3 and 4 are having independent income, it cannot be
said that deceased as father of respondents 3 and 4 did not contribute amounts
to the respondents 3 and 4, who are his son and daughter. After the death of
their father, the respondents 3 and 4 would have suffered loss of dependency
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C.M.A.No.130 of 2022
and therefore, they are entitled to compensation.
15.As far as the quantum of compensation is concerned, the
respondents 3 and 4 claimed that the deceased was earning a sum of
Rs.2,50,000/- per month in his Oil Mill business, along with the income from
the agricultural land. To substantiate the same, they have marked Exs.P13 to
P15 – Income Tax return verification forms of the years 2012 to 2015 and
examined P.W.3 – Inspector from the Income Tax department. The Tribunal
considering the three Income Tax Returns of the years 2012-2013, 2013-2014
and 2014-2015 and evidence of P.W.3, fixed average income of the deceased
at Rs.16,35,621/- per annum and fixed the monthly income in the year 2015
at Rs.1,36,301/-.
16.The contention of learned counsel appearing for the appellant is that
daughter-in-law of 3rd respondent was inducted as partner, on the demise of
Samiyappa Gounder and there is no loss in business, the deceased was aged
85 years and hence, it is not believable that he was actively participating in
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the cultivation activities and was earning Rs.2,50,000/- as income per month,
is not acceptable. The deceased was partner in oil mill business with 20%
share. He earned income every year and has filed Income Tax as evidenced by
Exs.P13 to P15. Even if the son of the 3rd respondent alone was carrying on
the oil mill business, the deceased was getting 20% share in the income from
the said business. On the demise of Samiyappa Gounder, the respondents 3
and 4 have suffered the said income. When the daughter-in-law of 3rd
respondent was inducted as partner in the business with 20% share, in the
place of the deceased Samiyappa Gounder, she will be contributing the
income received by her from the business only to her family and will not be
paying the same to respondents 3 and 4. In view of the same, till his death,
the deceased was getting income from oil mill business and it cannot be said
that there is no loss to respondents 3 and 4 in respect of oil mill business on
induction of daughter-in-law of 3rd respondent after the demise of Samiyappa
Gounder. Similarly, it is the contention of the learned counsel appearing for
the respondents 3 and 4 that the deceased was actively involved in
agricultural activities and after his death, the income derived by him by
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doing agriculture is loss to respondents 3 and 4. The appellant or respondents
1 and 2 have not let in any evidence to disprove this contention. At the same
time, it is to be taken note that deceased would not have physically cultivated
the agricultural land, but only supervise the activities and made arrangements
for availability of materials and coolie. The respondents 3 and 4 also have not
proved that after the demise of Samiyappa Gounder, no agricultural activities
were carried on and there was total loss of income from agricultural activities.
The Tribunal erroneously fixed the monthly income considering both the
business income as well as the agriculture income. Considering the same, it
would be just and proper that if 50% of the agriculture income is taken into
account for calculating the income earned by the deceased till his death.
Exhibits Income from Income from agriculture
business
P13 Rs.7,73,645/- Rs.5,42,800/-
P14 Rs.6,98,201/- Rs.7,92,300/-
P15 Rs.9,33,314/- Rs.11,66,600/-
Annual income of deceased from business:
Rs.7,73,645/- + Rs.6,98,201/- + Rs.9,33,314/- = Rs.24,05,160/- - (A)
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Average Income : Rs.24,05,160/- / 3 = Rs.8,01,720/-
Annual Income of deceased from agriculture:
Rs.5,42,800/- + Rs.7,92,300/- + Rs.11,66,600/- = Rs.25,01,700/-
Average Income : Rs.25,01,700/- / 3 = Rs.8,33,900/-
50% of agricultural income (Rs.8,33,900/- / 2) = Rs.4,16,950/- - (B)
Total income of deceased from Business and agriculture per annum
Rs.8,01,720/- + Rs.4,16,950/- = Rs.12,18,670/-
(A) + (B)
The Tribunal considering the respondents 3 and 4 as dependents, deducted
1/3rd towards personal expenses of the deceased and following the judgment
of the Hon'ble Apex Court reported in 2009 (2) TNMAC 1 SC Supreme
Court [Sarla Verma & others vs. Delhi Transport Corporation & another],
applied the multiplier '5' and awarded compensation towards loss of
dependency. The amount awarded by the Tribunal is modified as only 50% of
the agricultural income is taken into account to arrive at the income of the
deceased. By fixing the annual income at Rs.12,18,670/-, deducting 1/3rd
towards personal expenses of the deceased and applying the multiplier '5', the
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C.M.A.No.130 of 2022
amounts awarded by the Tribunal towards loss of dependency is modified to
Rs.40,62,233/- [Rs.12,18,670/- x 5 x 2/3]. The Tribunal has excessively
awarded a sum of Rs.20,000/- towards funeral expenses, but failed to award
any amount towards loss of estate. As per the judgment of the Hon'ble Apex
Court reported in 2017 (2) TN MAC 609 (SC) [National Insurance Co. Ltd.,
Vs. Pranay Sethi and others], the respondents 3 and 4 are entitled to a sum of
Rs.15,000/- each towards funeral expenses and loss of estate. A sum of
Rs.30,000/- awarded by the Tribunal towards loss of love and affection is
meagre and hence, a sum of Rs.40,000/- each is awarded towards loss of love
and affection to the respondents 3 and 4. The amount awarded by the Tribunal
towards loss caused to the personal property is just and reasonable and hence,
the same is hereby confirmed. Thus, the compensation awarded by the
Tribunal is modified as follows:
S. No Description Amount awarded Amount Award
by Tribunal awarded by this confirmed or
(Rs) Court (Rs) enhanced or
granted
1. Loss of dependency 54,52,040/- 40,62,233/- Reduced
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2. Loss of love and 30,000/- 80,000/- Enhanced
affection
3. Loss of estate - 15,000/- Granted
4. Transport charges 20,000/- 20,000/- Confirmed
5. Funeral expenses 20,000/- 15,000/- Reduced
6. Loss caused to the 10,000/- 10,000/- Confirmed
personal property
including Moped
Total 55,47,354/- 42,02,233/- Reduced by
13,45,121/-
17.In the result, the appeal is partly allowed and the amount awarded
by the Tribunal at Rs.55,47,354/- is reduced to Rs.42,02,233/- together with
interest at the rate of 7.5% per annum from the date of petition till the date of
deposit. The appellant-Insurance Company is directed to deposit the award
amount now determined by this Court, along with interest and costs, less the
amount already deposited, if any, within a period of six weeks from the date
of receipt of a copy of this judgment, to the credit of M.C.O.P. No.1300 of
2015. On such deposit, the respondents 3 and 4 are permitted to withdraw
their share of the award amount, along with proportionate interest and costs,
as per the ratio of apportionment fixed by the Tribunal, after adjusting the
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amount, if any, already withdrawn, by filing necessary applications before the
Tribunal. The appellant/Insurance Company is permitted to withdraw the
excess amount lying in the deposit to the credit of M.C.O.P.No.1300 of 2015
on the file of the Additional District and Sessions Court, (Motor Accident
Claims Tribunal), Tiruppur, Dharapuram, if the entire award amount
determined by the Tribunal has already been deposited by them.
Consequently, connected Miscellaneous Petition is closed. No costs.
(V.M.V., J) (S.S., J)
01.07.2022
Index : Yes/No
Speaking Order : Yes/No
gsa
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C.M.A.No.130 of 2022
V.M.VELUMANI, J.
and
S.SOUNTHAR,J.
(gsa)
To
1.The Additional District and Sessions Judge,
(Motor Accident Claims Tribunal),
Tiruppur, Dharapuram.
2.The Section Officer,
V.R Section,
High Court, Madras.
C.M.A. No.130 of 2022
01.07.2022
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